Decision No. 16,573

Appeal of ROBERT JACKSON1, individually and as City Council Member for New York City District 7, AMADA CASTRO, individually and on behalf of her children P.J. and P.J., EMERITO J. BELTRAN, individually and on behalf of his child C.B., GUILLERMO GROUSSETT, individually and on behalf of his child C.G., and JANET DURAN, individually and on behalf of her children R.D. and A.D., from action of the New York City Department of Education regarding school utilization.

Michael A. Cardozo, Corporation Counsel, attorney for respondent New York City Department of Education, Chlarens Orsland, Esq., of counsel

KING, JR., Commissioner.--Petitioners challenge a determination of the New York City Department of Education(“DOE”) relating to the proposed opening and co-location of a new district elementary school, 06M103, with an existing district elementary school, P.S. 132 Juan Pablo Duarte(“P.S. 132”), in building M132 (“M132” or “the building”).The appeal must be dismissed.

Except for petitioner Jackson, petitioners are parents who allege that their children attend P.S. 132. Petitioner Jackson is a City Council member for District 7.

The building is located in respondent’s District 6.

P.S. 132 is a zoned elementary school2 serving grades kindergarten through five in the building. Also located in

1 According to the verified answer filed by respondent, Council Member Jackson’s office informed respondent that the Council Member had never consented to being named as a petitioner in this proceeding.

2 As indicated in the Educational Impact Statement, a student’s zoned school is determined by his or her home address. Zoned schools are obligated to serve all students residing in their zone, space permitting, regardless of when families register.

the building are two community based organizations, Columbia Presbyterian Mental Health and Alianza Dominicana.

On January 23, 2013, DOE issued an Educational Impact Statement (“EIS”) pursuant to Education Law §2590-h(2-a)proposing the co-location of 06M103 in the building. According to the proposal, 06M103 will share an elementary school zone with P.S. 132 and will begin enrolling kindergarten students in the 2013-2014 school year. It will add one grade each year until it reaches grade five in the 2018-2019 school year.

In addition to the proposed co-location, DOE planned an enrollment reduction at P.S. 132, whereby beginning in September 2013, P.S. 132’s enrollment will decrease gradually until it stabilizes at a new lower level in the2018-2019 school year.

Also on January 23, 2013, DOE issued a notice that a joint public hearing regarding the co-location proposal was scheduled for March 4, 2013. On February 1, 2013, an amended notice was issued indicating that the joint public hearing was rescheduled to March 6, 2013. On March 5,2013, a Spanish language version of the EIS was provided to the principal of P.S. 132 who was asked to send copies home with students.

The joint public hearing was held on March 6, 2013.Additional copies of the Spanish language version of the EIS were made available at the hearing. Approximately 128people attended the hearing, including members of the school leadership team (“SLT”) and Community Education Council (“CEC”).

On March 19, 2013, DOE prepared a Public Comment Analysis (“Analysis”) summarizing the comments received at the joint public hearing and the oral and written comments submitted directly to DOE. On March 20, 2013, the Panel on Educational Policy (“PEP”) voted to approve the proposal. This appeal ensued.

Petitioners challenge DOE’s determination to co-locate06M103 with P.S. 132. They assert that DOE did not provide a Spanish translation of the meeting notices and EIS3, and that there was a lack of Spanish speaking representatives from DOE at the “public hearings.” They also assert that

2Petitioners also allege that DOE failed to provide a Building Utilization Plan (“BUP”) in Spanish. However, pursuant to Education Law §2853(3)(a-3), DOE is required to develop a BUP only when a public school building has been selected for a proposed co-location of a charter school. Here, petitioners are challenging the co-location of two public schools that are not charter schools.

DOE failed to work with the SLT and the CEC. In addition, petitioners contend that fewer English language learner(“ELL”) students will be enrolled in 06M103, which, they argue, unfairly discriminates against such students. Finally, they argue that the co-location will have an adverse impact on P.S. 132 students.

Respondent denies petitioners’ allegations and asserts that its determination to co-locate 06M103 with P.S. 132 in the building is a rational act of professional educational discretion and is neither arbitrary nor capricious.

Generally, boards of education have the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Matter of Older, et al. v. Bd. of Educ. Of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d333; Appeal of Small, et al., 52 Ed Dept Rep, Decision No.16,420; Appeals of Luciano and Hatton, 50 id., Decision No.16,153). Accordingly, a board’s decision to reorganize its schools will not be set aside unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420;Appeals of Luciano and Hatton, 50 id., Decision No. 16,153;Appeal of Wong, et al., 42 id. 269, Decision No. 14,850).Further, pursuant to Education Law §§2590-h(17) and 2554(9), in respondent’s district, the Chancellor of the City School District of the City of New York (“Chancellor”)has the power to establish and maintain such schools or classes that he “shall deem necessary to meet the needs and demands of the city” (see Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420; Appeal of Torres, 46 id. 301, Decision No. 15,515).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882).

Petitioners assert that a large percentage of P.S. 132parents speak Spanish as their first language and that many parents did not speak English well enough to knowingly and intelligently participate in discussions concerning the proposed co-location. Specifically, they claim that DOE failed to provide certain translation services. However, petitioners have failed to meet their burden of proof on this claim.

Education Law §2590-h(2-a) was enacted in 2009 as part of the New York City school governance legislation (Chapter345 of the Laws of 2009). Among other things, Education Law §2590-h(2-a) requires the Chancellor to prepare an EIS for any proposed school closing or “significant change in school utilization” for any public school located within the City School District. The purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).

With respect to the EIS, petitioners do not allege that it is deficient or fails to include the statutorily required elements. Rather, they allege that DOE did not provide a Spanish language version of the EIS. However, in its verified answer, DOE denies the allegation and submits the Spanish language version of the EIS as an exhibit. In addition, DOE states in its answer that on March 5, 2013,it provided a Spanish language version of the EIS to the principal of P.S. 132 who was asked to send copies home with students. DOE further states in its answer that additional copies of the Spanish language version of the EIS were made available at the March 6, 2013 joint public hearing.

Education Law §2590-h(2-a) contains no specific requirement regarding translations of an EIS. Moreover, as noted above, the purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform their comments. The record indicates that in addition to the comments made at the March 6, 2013 hearing, DOE received written comments at the hearing, as well as comments via email and voice mail.

Petitioners also assert that DOE failed to provide Spanish translations of the meeting notices. However, in its answer, DOE denies petitioners’ assertion and states that it prepared a Spanish-language notice of the PEP meeting, provided the translated notice to the principal of

P.S. 132, and instructed him to distribute the notice to students. DOE also states in its answer that it made the translated notice of the PEP meeting available on its website.

In addition, contrary to petitioners’ assertion, DOE states in its answer that translation services were available at the joint public hearing. DOE explains that it hired two Spanish translators, but that both left prior to the beginning of the hearing after one of the 4

translators sustained an injury. However, DOE further explains that it was able to use P.S. 132 staff to provide translation services at the joint public hearing. DOE also indicates in its answer that translation services were available for community members at the March 20, 2013 PEP meeting.

Based on this record, I find that DOE provided translated versions of the EIS and meeting notices, and made translation services available and thereby substantially complied with Education Law §2590-h(2-a) int his regard (see Appeal of McCall, et al., 51 Ed Dept Rep, Decision No. 16,257). Other than their conclusory assertion that “[m]any of the parents” who attended the public meeting “did not speak English well enough to knowingly and intelligently participate ...,” petitioners submit no affidavits or other evidence to support their claim. Indeed, the record indicates that DOE provided sufficient information to inform public comment and that at least two petitioners provided such comments.

Petitioners have also failed to meet their burden of proof on their claim that DOE failed to meet, work with or speak with the SLT or involve the CEC in the co-location process. Other than their conclusory assertions, petitioners submit no evidence to support their claim. First, petitioners fail to establish that respondent violated any specific provision of law or regulation (see Appeal of Espinet, et al., 50 Ed Dept Rep, Decision No.16,212).4 In addition, the Analysis indicates that several members of the SLT attended the joint public hearing, three of whom made comments opposing the proposal. The Analysis further indicates that DOE’s director of space planning in Manhattan conducted a walk-through of the building with the principal of P.S. 132 who is a member of the SLT.

Similarly, with respect to petitioners’ claim that DOE failed to involve the CEC in the co-location process, the Analysis indicates that three members of the CEC attended the hearing, two of whom made comments opposing the proposal. In addition, DOE states in its answer that it rescheduled the joint public hearing at the request of the CEC. Accordingly, petitioners have not carried their burden of proof with respect to these claims (see Appeal of Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212).

4 To the extent that petitioners claim that respondent failed to comply with the No Child Left Behind Act, an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum in which to obtain relief under that statute (see 20 USC §7844[a][3][C]; Appeal of Martinez, 44 Ed Dept Rep 297, Decision No. 15,178). 5

Although the petition is not entirely clear, petitioners also appear to argue that fewer ELL students will be enrolled in 06M103, and therefore, such students will be discriminated against on the basis of, among other things, their lack of English language capabilities. Again, petitioners submit no evidence to support this claim. The Analysis indicates that P.S. 132’s current zone has a high percentage of ELL students and that 06M103 will likely accept more zoned kindergarten students than P.S. 132 because of P.S. 132’s planned enrollment reduction. In addition, while I note that Education Law §3201 prohibits discrimination against student admission or assignment to public schools based on race, creed, color or national origin, the petition is devoid of any allegation that petitioners’ children have been denied admission to a district school or assigned to a school on a prohibited ground. Accordingly, I find no basis in the record to support petitioners’ claim (see Appeal of Cartagena, 43 Ed Dept Rep 267, Decision No. 14,991).

Petitioners also assert that the proposal is unreasonable and a “ruse” to eliminate P.S. 132. However, in its answer, DOE states that the determination to reduce the cohort size at P.S. 132 was made to allow staff at P.S. 132 to focus on a smaller student population in an effort to save the school, not eliminate it. The EIS explains DOE’s decision-making process and indicates that, as a result of P.S. 132’s history of poor academic performance, DOE conducted a review and determined that an enrollment reduction would help address the school’s performance struggles by allowing teachers to focus on a smaller student population. While petitioners may disagree with DOE’s decision, on the record before me, I cannot conclude that they have carried their burden of establishing that respondent acted arbitrarily or capriciously.

In addition, petitioners claim, in conclusory fashion, that the co-location will have adverse effects on the students at P.S. 132 including reduced classroom availability and increased class size, cafeteria overcrowding and unreasonable lunch times, and reduced resources and funding. I note that these issues were also raised through the public comment process and addressed by DOE in its Analysis, which is over 15 pages long.

With respect to petitioners’ concerns about reduced classroom availability and increased class size, the EIS indicates that the allocation of classrooms is guided by the Citywide Instructional Footprint, which sets forth the baseline number of rooms that should be allocated to a 6

school based on the grade levels served by the school and the number of classes per grade. The EIS further indicates that the number of class sections at each school is determined by the principal based on enrollment, budget and student needs, and there is a standard guideline of target class size for each grade level. Moreover, in the Analysis, DOE states that it does not expect that the proposal will cause increased class sizes at P.S. 132.

Petitioners also assert that the proposal will result in cafeteria overcrowding and unreasonable lunch times. Petitioners’ assertions are speculative. According to the EIS, specific decisions regarding the allocation of the shared spaces in the building, such as the cafeteria, would be made by the Building Council, consisting of principals from all co-located schools, in conjunction with DOE’s Office of Space Planning.

Petitioners further argue that the proposal will result in reduced resources and funding for P.S. 132.However, the Assessment explains that all NYCDOE schools receive support and assistance from their superintendent and Children First Network, a team that delivers operational and instructional support directly to schools. It also states that struggling schools receive supports as part of system-wide efforts to strengthen all schools as well as individualized supports to address the school’s specific challenges. In addition, I note that, according to the EIS, the proposed co-location will not prevent P.S.132 from continuing to offer a Spanish dual-language program. The EIS also states that the proposal is not expected to impact instructional programming at P.S. 132,that P.S. 132 students with disabilities will receive services in accordance with their Individualized Education Programs, and that ELLs at P.S. 132 will continue to receive appropriate ELL services. In addition, contrary to petitioners’ conclusory assertion that the proposal will result in reduced funding for P.S. 132, the EIS indicates that all New York City schools are funded through a per pupil allocation which is weighted based on students’ grade level and need, including proficiency level, special education and ELL status.

Additionally, petitioners claim that P.S. 132 did not have sufficient time to address performance issues. They allege that a Saturday enrichment program is in place, grants for computer labs have been secured, and a partnership with a non-profit organization designed to bring music instruction to public schools has been established. However, the record indicates that P.S. 132 7

received an overall “D” grade on its NYCDOE progress report for two consecutive school years, and a “Developing” on its most recent NYCDOE Quality Review in 2011-2012. Moreover, the Assessment indicates that, in addition to receiving support and assistance from its superintendent and Children First Network, P.S. 132 was offered leadership, instructional, operational and student supports. While petitioners assert that P.S. 132 students will show greater academic growth if the school is given time to implement the enrichment program, they have not demonstrated that DOE abused its discretion in deciding to co-locate 06M103 with

P.S. 132 in the building. I note that the Analysis addressed performance issues at P.S. 132.

As set forth above, although petitioners disagree with the outcome, I cannot conclude on the record before me that they have carried their burden of establishing that DOE’s decision was arbitrary, capricious, lacked a rational basis or was otherwise improper.

I have considered petitioners’ remaining contentions and find them to be without merit.